Laxminarayan Pareshwarlal ... vs Pravin S/O Prithviraj Jaiswal And ...
2017 Latest Caselaw 5150 Bom

        cra95.17.J.odt                                                                                                1/11    


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           NAGPUR BENCH, NAGPUR


                       CIVIL REVISION APPLICATION NO. 95 OF 2017


             Laxminarayan Parmeshwarlal Jaiswal.
             Aged about 66 years, Occup-Agriculturist &
             Business, R/o-Shrawagi Plots, Opp. Dargah,
             Near Tower, Umri Road, Akola,
             Tah and District - Akola.                                .....  APPLICANT

                           ...VERSUS...

        1]  Pravin S/o Prithviraj Jaiswal,
              Aged about 37 years, Occup-Business.

        2]  Smt. Pushpalata Wd/o. Devkinandan Jaiswal,
              Aged about 67 years, Occup-Agriculturist.

        3]  Sushilkumar s/o Devkinandan Jaiswal,
              Aged about 41 years, Occup-Agriculturist
              and Business.

              All Respondents R/o. At Post Pinjar,
              Tah-Barshitaklil, Dist-Akola.                                                ...... RESPONDENTS

        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri A. M. Ghare with Nitin L. Jaiswal, Advocate for the Applicant.
        Shri R. R. Dawda, Advocate for the Respondent No.1.
        Shri Nilesh Kalwaghe with S. N. Gaikwad for Respondent Nos.2 & 3.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                           CORAM  :   S.B. SHUKRE, J.

th DATE : 27 JULY, 2017.

ORAL JUDGMENT :

By this application, the applicant-original defendant

No.1 has taken an exception to the legality and correctness of the

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order dated 18.07.2017 thereby rejecting the application (Exh.46)

filed for rejection of plaint on the ground that the plaint is barred

by law as provided under Order VII Rule 11(d) of the Code of Civil

Procedure, passed by Civil Judge Junior Division, Barshitakli, in

Regular Civil Suit No.74 of 2016.

02] Rule. Rule made returnable forthwith. Heard finally by

consent.

03] It is well settled law that when an application under

Order VII Rule 11(d) of the Code of Civil Procedure is filed, the

Court has to confine its inquiry only to the pleadings in the plaint.

The Court cannot travel beyond those pleadings and look into the

defence taken by the defendant. A useful reference in this regard

may be made to the case of Hardesh Ores Pvt. Ltd vs M/S. Hede

and Company, reported in (2007) 5 SCC 614. Now bearing in

mind these principles of law, let us examine whether the impugned

order is consistent with the settled principles of law or not.

04] Shri. A. M. Ghare learned counsel for the applicant, in

his extensive argument, has submitted in nut-shell that there are no

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pleadings in the plaint showing the basis for exclusive and separate

possession of property, which is admittedly a joint family property

in which the respondent No.1 (original defendant No.2), the

present applicant (original defendant No.1) and respondent Nos.2

and 3 (original plaintiff Nos.1 & 2) are the co-sharers. He submits

that even when it is pleaded that possession of one of the co-sharers

is exclusive, such possession is always held to be on behalf of all the

co-sharers, unless it can be shown that there is some mutually

agreed arrangement between all the co-sharers to allow one of the

co-sharers to retain exclusive possession of the joint family

property. He places his reliance on the case of Sakhahari

Parwatrao Karahale and Another ..vs.. Bhimshankar Pawatrao

Karahale, reported in (2002) 9 Supreme Court Cases 608.

05] Shri. Nilesh Kalwaghe, learned advocate for the

respondent Nos.2 and 3, in his detailed argument, has submitted

that the possession of the joint family property held by the

respondent Nos.2 and 3 is permissive and this can be inferred from

the fact that there has been no objection taken to the separate

possession held and separate cultivation of the suit property, which

are agricultural fields, by this applicant. He invites my

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attention to the findings recorded by Civil Court in it's judgment

dated 13th October, 2014 in the previous suit being Special Civil

Suit No.24/2001, which was filed by this applicant against the

respondent Nos.2 and 3 and other co-sharers. He submits that in

paragraph No.370 of this judgment, the Civil Court has found that

the separate cultivation of the respondent Nos.2 and 3 was never

objected to by this applicant and so intention to separate from

family to enjoy the share in severalty was unequivocal and that the

exclusive possession by way of separate cultivation was admitted by

this applicant. He submits that if this is so, not the ratio of the case

of Sakhahari Parwatrao Karahale (supra) but the ratio of case of

Tanushree Basu and Others ..vs.. Ishani Prasad Basu and

Others, reported in (2008) 4 Supreme Court Cases 791 would be

applicable to the facts of this case. Thus, he submits that the

respondent Nos.2 and 3 have a right in law to defend their separate

and exclusive possession, which is basically of permissive nature,

till they are dispossessed by due process of law and therefore, he

supports the impugned order.

06] The learned counsel for the respondent No.1 supports

the argument of learned counsel for the applicant.

         cra95.17.J.odt                                                                                                5/11    


        07]                On going through the pleadings in the plaint, one can

see that the respondent Nos.2 and 3 have admitted that the suit

property is a joint family property, comprising agricultural land, in

two parts, bearing Survey No.9 admeasuring 8 hectares and 64 R

situated at village Umardari, Taluka Barshitkali, Distt. Akola, that

the respondent Nos.2 and 3 as well as the applicant and respondent

No.1 have their specific undivided share in this property and that

this property is yet to be physically partitioned. They have also

admitted that although the previous suit which was for partition

came to be decreed by the Civil Court on 13 th October, 2014

between these parties, an appeal filed against that judgment and

decree by the present applicant before the Court of District Judge,

Akola is still pending for final disposal. In the present plaint,

however, the respondent Nos.2 and 3 have nowhere specifically

contended that their exclusive possession arises out of some family

arrangement between all the co-parceners or the consent given by

all the co-parceners or co-sharers. They also do not specifically

plead that the applicant or for that matter any other co-sharers

never raised any objection to their exclusive possession. They do

not say as well categorically that theirs was a permissive possession

resulting from some mutual arrangement. All that they submit is that

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Devkinandan, the husband and father of respondent Nos.2 and 3

respectively, came into exclusive possession of the suit property

after the death of the common ancestor Parmeshwarlal and that

after the death of Devkinandan, respondent Nos.2 and 3 received

the exclusive possession of the suit property. It is not their case

that Devkinandan or they came into exclusive possession of the suit

property on account of some mutual agreement between all the co-

sharers, rather their pleadings show that the basis of their

possession is closeness of Devkinandan to Parmeshwarlal and

assistance given by the former to the latter in cultivation and

respondent Nos.2 and 3 being sons of Devkinandan. In the case of

Sakhahari Parwatrao Karahale (supra), the Hon'ble Apex Court

held that once it is pleaded that all the co-parceners had undivided

share in the joint family property, the possession held by one of the

co-sharers would be the possession on behalf of all the co-sharers.

It further held that in such a case even if it is pleaded that the

possession of one of the co-sharers is exclusive to the remaining co-

sharers, such possession in law would be a possession for and on

behalf of all the co-sharers. With the pleadings being what they

are, one would have to say that in this case also the exclusive

possession contended to be held by the respondent Nos.2 and 3

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would have to be understood as the possession not only for

respondent Nos.2 and 3 and but also on behalf of all the remaining

co-sharers.

08] The learned advocate for the respondent Nos.2 and 3

has argued that as no objection was taken to the exclusive

possession of the joint family property by the other co-sharers

including this applicant, it has to be understood that the possession

in this case was of permissive nature and the permissiveness would

have to be considered as flowing from failure of the applicant and

respondent No.1 to take objection to their exclusive possession till

October, 2016, when the cause of action to file this suit arose. He

also seeks to draw support in this regard from the findings recorded

by the Civil Court in the judgment rendered in Special Civil Suit

No.24 of 2001.

09] I am not impressed by this argument. The findings

recorded by the Civil Court in judgment rendered in Special Civil

Suit No.24 of 2001 are not the essence of it's interpretation of only

the pleadings in the plaint in that suit but the interpretation of

plaint pleadings, pleadings in the written statement and evidence

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led by the parties. Therefore, these findings, cannot be considered

to be the pleadings of the respondent Nos.2 and 3. On the

contrary, these findings are yet to attain finality as appeal preferred

against the judgment is pending and respondent Nos.2 and 3 admit

that. It would then follow that these findings cannot claim any

equivalence to unequivocal pleadings in the plaint itself. If any

reliance was to be placed on the findings, which are now disputed,

it was necessary for the respondent Nos.2 and 3 to have also

pleaded in specific terms that the basis of their exclusive possession

was the permissiveness arising from inaction on the part of the

applicant as well as the findings recorded by a Civil Court in that

regard. But that is not the case here. Apart from it, it is significant

to point out here that the Civil Court has infact recorded no clear

finding about the possession being permissive in its nature. It has

rather said (para 370) that intention to separate from family to

enjoy share in severalty is unequivocal. This finding is arrived at by

the Court by way of an interference through process of

interpretation, which process cannot be applied to understand the

pleadings in the plaint. Plaint pleadings are to be considered on

their face value and taking them to be correct as they appear to be.

So this finding cannot be taken as a pleading in the plaint raised by a

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party. On the contrary, the specific pleadings are that the suit

property is a joint family property in which all co-sharers have their

respective undivided shares. In this suit, apart from absence of a

pleading of permissive possession, there is also no pleading that by

conduct of the parties the intention to separate was revealed long

ago and was put into effect and that it was this intention which

formed the basis of exclusive possession. So, I do not see any

substance in the argument of learned counsel for the respondent

Nos.2 and 3 in this regard.

10] In the case of Tanusree Basu and Others relied upon by

the learned counsel for the respondent Nos.2 and 3, same

proposition of law as held in the case of Sakhahari Parwatrao

Karhale (supra) has been laid down. In paragraph No.13 of the

judgment, the Hon'ble Apex Court held that there cannot be any

doubt or dispute as a general proposition of law that possession of

one co-owner would be treated to be possession of all, but the

Hon'ble Apex Court in the facts peculiar to that case held that the

plaintiffs themselves having admitted that by reason of mutual

adjustment the parties were in separate possession of three flats,

the separate possession of the disputed property would have to be

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acknowledged and accordingly limited injunction would have to be

granted. Such being not the facts of this case, no respite as thought

to be due to the plaintiffs in the case of Tanusree Basu and Others

(supra), can be given to the respondent Nos.2 and 3 - plaintiffs in

the present case.

11] The reliefs claimed in the plaint are of permanent

injunction on cutting of standing crops and prohibitory injunction

against dispossession for a particular period of time. But as held in

the case of Sakhahari Parwatrao Karahale (supra), in a suit of the

present nature, wherein there is no basis pleaded for the retention

of the exclusive possession of the joint family property by the

plaintiffs, no injunction can be granted to one co-sharer against

other co-sharers. Going by the law, the facts pleaded in the plaint

show that this suit is barred by law as no injunction as claimed

here could be sought against the other co-sharers. The impugned

order being contrary to the settled principles of law, needs to be

quashed and set aside. I find that plaint is liable to be rejected

being barred by law under Order VII Rule 11(d) of the Code of Civil

Procedure. Hence the order.

         cra95.17.J.odt                                                                                                11/11   


                                                         O R D E R.

        (i)                The revision application is allowed and the impugned 

                           order is quashed and set aside.

        (ii)               The application vide Exh.46 is allowed.

        (iii)              The plaint is rejected.

        (iv)               Parties to bear their own costs.



                                                                                      JUDGE
        PBP